Principles in International Law as Rational Reconstructions. A Taxonomy

Abstract

The paper suggests that principles as an important part of legal doctrine should be understood as the result of the rational reconstruction of legal discourse in the sense of Jürgen Habermas’ method bearing the same name (A.). It first argues that principles are best understood as abstract legal rules, not as normative presuppositions that are categorically different from rules (B.). As principles in international law just as in domestic legal orders are important parts of doctrine, the papers inquires into the self-understanding of doctrine, i.e. of the method used for the formation of principles (C.I.). Doctrine as the production of conceptual abstractions from the positive law has faced a number of methodological challenges over the last two centuries (C.II.). The method of rational reconstruction provides a methodologically tenable explanation. Envisaged by Jürgen Habermas as an explanation for the practice of communication and later applied to the practice of political discourse, this method allows understanding legal principles as the normative presuppositions of the participants in legal discourse (C.III.). Depending on which part of legal discourse one attempts to reconstruct, a taxonomy of principles in international law emerges, ranging from hard-law general principles of law to structural principles with merely heuristic functions (D.). The rational reconstruction of principles in international law thus helps to carve out the dividing line between law and politics and bears relevance for current scholarly endeavors (E.).

Keywords: Principles, rational reconstruction, international law, general principles, sources of law, legal theory, legal doctrine, Habermas, Dworkin, Alexy